Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Sunday, January 16, 2005

The Washington Post, in its Sunday, January 16, 2005 editorial today opposing the confirmation of Alberto Gonzales as attorney general, gets it wrong on the Geneva Conventions. My guess is that the editorial writers have never actually read the relevant article of the conventions, but instead have simply relied on press releases from various rights groups that tell the WaPo what it wants to hear. The editorial reads:

"In fact, the White House counsel [Gonzales] endorsed the view that the hundreds of combatants rounded up by U.S. and allied forces in Afghanistan, who included members of the Taliban army, foreign volunteers and a few innocent bystanders, as well as al Qaeda militants, could be collectively and indiscriminately denied Geneva protections without the individual hearings that the treaty provides for." (Emphasis added)

The Post's editorial writers might have troubled themselves to read what Article 5, paragraph 2 of the Third Geneva Convention actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." (Emphasis added)

It has long been my view, in scholarly and other writing, that sound policy urges the US to give each detainee a tribunal to determine their status, at least if it is proposed to deny someone Geneva protections. This is the view in 1997 Department of Defense regulations that afforded a brief, three officer panel to make such determinations and which was informally regarded, according to my understanding, by the ICRC as beyond the standard required by the Third Geneva Convention. I believe the decision of the Bush Administration not to apply those regulations was inappropriate and unwise. But it was not a violation of the Convention.

The Bush Administration was - and is - not in violation of Article 5 of the Third Geneva Convention. Read it. It does not say that a "competent tribunal" shall determine whether any doubt has arisen with respect to the POW status of a detainee. It says, rather, that "should any doubt arise" as to whether a detainee is entitled to POW status, then the person shall be treated as a POW until a competent tribunal shall determine his or her status. The question of who is entitled to determine whether any doubt has arisen is left open - it does not say that this matter must be determined by a competent tribunal. It leaves open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required.

This was a bad - very bad - policy judgment by the Bush Administration in these circumstances. It should have gone with DoD's existing regulations; I agree entirely with Tod Lindberg's analysis in the Weekly Standard, here. But it is not a violation of the actual language of the treaty. The consistent inability of MSM such as the Post - slamming this at the administration in article after article for now several years - strongly suggests to me that few, if anyone, in MSM have actually read the text. Instead, I suspect, reporters and op ed writers find it easier to rely on various highly unobjective and partisan NGOs. But reading this one sentence is not rocket science; even a Post editorialist ought to be able to parse it without deferring to Amnesty International or Human Rights Watch. (Note to MSM reporters: Groups such as AI and HRW perform an invaluable service. But their legal analyses are not objective; they are lawyers' briefs, aimed at reaching a particular, foreordained conclusion. I understand that, being MSM, you like analyses that reach foreordained conclusions; it's a process only too familiar to you, and it's especially congenial when it reaches your foreordained conclusions. But don't forget, somewhere in the back of your mind, that it is not, and never was intended to be, objective. Lawyers write briefs - just as, alas, so many of you do.)

But it is not merely through a technical oversight that Article 5 was drafted this way, as the treaty drafting history indicates. It was designed to take account of the following kind of situation. Suppose the US Navy picks up drug smugglers with tons of cocaine onboard their vessel, out in the Caribbean. One of them claims POW status - "I am a FARC member from Columbia! I am a POW!" Now, if a hearing were held, obviously that claim would be rejected forthwith. (Or would have been. By reason of the Bush administration's very poor lawyering in front of the Supreme Court, overreaching on a constitutional theory of unitary executive power that didn't even win over Justice Scalia and taking down a perfectly defensible interpretation of the Geneva Conventions with it, fullblown and perhaps even civilian court hearings may now be required, in place of the informal, battlefield 1997 DOD regulations' hearings. But that's another post.) Should that claim by drug smugglers to be entitled to POW treatment pending a fullblown hearing be required? Article 5 was drafted precisely to make clear that you do not have to afford a hearing in every case, only in those cases where some doubt has arisen - and it is not required, under the language of the treaty, for a tribunal to make that determination. In the case of the drug smugglers, it makes perfectly good sense for the commanders to make the determination that doubt has not arisen. It does not make sense, nor is it fair, in the case of fighters picked up in Afghanistan - but it is within the literal wording of the text. It is not a violation of international law.

One of the few commentators to have picked up on this is jurisprudentialist Ronald Dworkin - scarcely a friend of the Bush administration. Nevertheless, with admirable objectivity, his analysis of the detainee cases in the Surpreme Court, in the New York Review of Books, carefully avoids the claim that this action by the administration violates the Conventions, although he slams the administration on nearly every other matter. Read his article here. (Dworkin makes the same point in an earlier article in the NYRB, but it is only subscriber available.) The key excerpt (emphasis added):

"The Geneva Conventions draw a fundamental distinction between two classes of people that a nation might capture in war or other military action. One class must be treated as prisoners of war, which means, among other things, that they may not be punished simply for bearing arms against the capturing nation, that they must be held in conditions comparable to those of the soldiers guarding them, and that they may not be exposed to coercive interrogation. The second class includes not only civilians fighting independently of any government but soldiers in a more organized action who do not wear uniforms or other identifying badges or who fight with a force that does not respect the laws of war. They are not entitled to prisoner-of-war status; they may therefore be prosecuted and punished as criminals for acts of war, though the Geneva Conventions require that they be treated humanely.

The Bush administration claims that these provisions allow it to detain some prisoners, whom it calls "unlawful combatants," indefinitely without charge or prosecution, even though they are not treated as favorably as prisoners of war and may be subjected to coercive interrogation. It claims that Hamdi, Padilla, and its other prisoners belong to that category, and it may continue to do so if, as seems likely, they are unable successfully to challenge their detention before military commissions or in habeas corpus proceedings. In an earlier article in these pages I argued that, whether or not this option is permitted by a strict understanding of international law, a decent respect for human rights requires that the administration set it aside and choose between prosecuting its prisoners as criminals, with the normal safeguards of the criminal process, and treating them as prisoners of war, which would mean an end to round-the-clock interrogation, sensory deprivation, humiliation and other forms of coercion. I said that the administration's present policy shows an impermissible contempt for the rights and dignity of its victims.

The Court's recent decisions suggest that a new and stronger claim can now be made: that the government's treatment of prisoners it calls "unlawful combatants" is not only morally indefensible but forbidden by the Constitution as well."

Note that although Dworkin severely criticizes the administration on moral and even, finally, on Constitutional grounds, he is careful to refrain from declaring that it is in violation of international law - i.e., Article 5 of the Third Geneva Convention.

***

The point, then, is that the Post editorial repeats a error oft-heard across MSM, that by failing to provide individualized hearings, the US is in violation of the Geneva Conventions. As a policy matter, and indeed as a matter of basic fairness, it should do so. As a matter of international law, that, I'm afraid, amounts to a MSM urban legend.

(I discuss Article 5 of the Geneva Conventions in more detail on this blog here.)

6 comments:

Your conclusion is that the administration is following a perfectly legal course supported by a complete reading of the Geneva Conventions.

Your "however" clause to that conclusion is that even if the course undertaken is legal, there is some "moral" "basic fairness" obligation that should result in a "policy decision" to apply standards not required under international law (and which are not presently required under the U.S. Consitution)?

I think that following unwritten and unagreed upon moral standards in such international matters is a foolish effort to, in effect, "put lipstick on a pig."

War is very different from criminal law enforcement and has very different rules for lots of valid and important reasons. These "combatants" and others rounded up who had weapons but who were not dressed in uniforms could have been summarily executed under international law, as I understand it. In essence they are more akin to pirates than to legitimate soldiers. Affording them rights to which they are not otherwise entitled under some "moral" theory subverts, instead of working to enhance, international law and could cause our soldiers serious problems on the battlfield, and all the more so when that "moral" theory can and does shift in the wind.

Thanks for the cogent, and persuasive, recap of article 5 and status tribunals . . . and pointing out the fallacy of the argument that the GCs require one in every case. It's also nice to see a lawyer who grasps some of the practical considerations in applying the law of war.

That said, I have to agree with Eagle1 on the benefits of holding hundreds of individual status tribunals. If the reasons for denying POW status are failures of the organization (i.e., no commander responsible for his subordinates, no fixed distinctive sign, and failing to abide by the laws of war), there's no finding a tribunal could make that would extend POW status to an individual, and the exercise seems pointless.

Besides, what most human rights advocates seem to be suggesting is a tribunal in which the government must prove the individual is a combatant, prior to detention. The obvious problem with that course is that it confers a privilege to unlawful combatants not available to lawful ones . . . providing an incentive to flout the law of war.

As a practical matter, the screenings of captives conducted in Afghanistan--from which a small fraction were shipped to Guantanamo--seems more appropriate than status tribunals. And the ongoing review process, which has released many (at least some of which were undoubtedly guilty, as they were subsequently involved in attacks on US forces), takes most of the sting away from the "indefinite detention" argument. In any event, the lion's share of the blame for the possibility that innocent individuals may have been swept up goes to the organization hiding its combatants amongst civilians. And causing, by their flouting of the rules, exactly the sort of situation the GCs were adopted to prevent.

Several politicians have recently opined that the reason for humane treatment of captives was to ensure similar treatment for captured US servicemen. The logical disconnect in extending preferential treatment to law of war violators--and expecting it to resonate with their better nature--seems to escape them. And evidence suggests our current adversary views that approach with contempt and considers it a sign of weakness. It would seem more logical to extend the harshest legal treatment to unlawful combatants, in hopes of deterring such behavior (if not in this one, perhaps in future conflicts). From Quirin:

"An important incident to the conduct of war is the adoption of measures by the military command not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war."

Brien Hallett's THE LOST ART OF DECLARING WAR (http://www.amazon.com/exec/obidos/tg/detail/-/0252067266/qid=1105932353/sr=1-1/ref=sr_1_1/103-0085523-4531809?v=glance&s=books) indicates that up through the Renaissance--and our own Declaration of Independence which has both the form and intent of a "declaration of war"--the purposes of such a declaration is to establish belligerency. That includes the intent to treat all members of the nation who receives such a declaration as if "presumed guilty" of intent to inflict harm. IOW, shooting such a person on sight would be justified. This is why wearing a uniform that signals membership in the military of the opposing state is a sine-qua-non for for the Geneva convention's insistence that such membership plus explicit visible signalling of such membership is required for a bona-fide fulfillment of the convention's treaty obligation.

The trouble with the argument put forth on this blog by Mr. Anderson--and this applies to much of the left-wing objections to the Bush administrations' treatment of people captured in circumstances that raise significant probability that they are involved in military-like activities but w/o otherwise benefitted by either declared belligerency or requisite signalling of declared belligerency--is that it wants apparently to grant to such people a "presumption of innocence" that normally applies to people caught in the context of a criminal investigation.

This as I see it is at the heart of the problem of treating suspected terrorists as if they were criminals: they are carrying out acts that would under the convention be treated as "presumptively guilty," but are granted the right to claim some sort of due process right which attends and demands treatment on the presumption of innocence. You treat an opposing soldier in a combat situation as if he were "presumed innocent" of the intent to kill you, and you give him a chance to kill you every time.

It seems to me that until this specific element in the Convention's requirement of declaration of war and its relation to bona-fide belligerency is fully brought into the circle relevant aspects of this question, the question itself is going to continue to be plagued by obscurity and ambiguity.

I agree that the WaPo/Amnesty/etc. reading is not the only plausible one of Art. 5, para. 2 of Geneva III, and that there is plenty of room, along the lines you (and the Administration) set out, for a counterargument.

But I don't think that the interpretation of "should any doubt arise ..." is anywhere near as open-and-shut as you make it out to be, and I don't think the legal questions can be cavalierly dismissed by saying "reading this one sentence is not rocket science."

As you point out, "[t]he question of who is entitled to determine whether any doubt has arisen is left open." But Geneva III also does not state, expressis verbis, that the military command of a contracting party may permissibly be the final arbiter of this question. The text itself may indeed, as you say, "[leave] open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required", but it certainly does not give explicit positive sanction to this possibility.

Now I would argue - and I am certainly not alone in this - that when confronted with this kind of textual silence, we need to resolve it by turning to the structure of Geneva as a whole, the general principles of CIL, and fundamental notions of fairness.

In this context, reading "any doubt" to be legitimately adjudicable by the President or the Sec. Def., rather than by some form of individualized tribunal (however cursory), runs up against both the principle against self-judging and the principle that judicial or quasi-judicial decisions, as opposed to military ones, are best made in judicial or quasi-judicial fora. Clearly the question "has the individual X committed acts such that he is an unlawful combatant" is much closer to the kind of question traditionally adjudicated by a court-martial or tribunal than to the kind of question traditionally made by a President or Secretary of Defense acting solely under his military discretion.

It also seems to open a very easy way for a malevolent authority to sidestep the entire purpose of the POW convention by fiat. Given these points, I would hold that the "should any doubt arise" clause has to be read generously, in a way that provides some grounds -- again, I emphasize that I don't mean a civil trial or even a full-blown court-martial -- for adversarial contestation before a neutral factfinder, rather than just a decision by the President or the Secretary of Defense.

To be sure, my reading is not the only possible one - but I don't think yours is the only possible one either. Nonetheless, in conclusion if not in argument, at least two Justices of the Supreme Court (Souter and Ginsburg) and a lot of respected international lawyers seem to be on my side - so I don't think it can be dismissed as simply "highly partisan and unobjective" or "analysis aimed at reaching a foreordained conclusion." And I can't really blame WaPo for giving only one side of the argument in an editorial (although, in a news story, they should definitely point out the degree scholarly dispute on the matter) - it's too simple to say that they just "got it wrong."

(I read Dworkin as alluding to the complexity of the issue: his "whether or not" seems to me to be reserving judgment on the question, rather than simply accepting your reading.)

I note, by the way, that in a footnote to your article ("Role of the US Military Lawyer", 4 Chi J Int'l L 460, n. 23), you come extremely close to my point of view: you write that the US position "elevates a mere legal literalism over the obvious intent of the Third Geneva Convention." I would say, in perhaps more Blackian language, that it elevates one literalistic reading of an inherently ambiguous clause over a structural imperative that becomes clear when one looks at the Geneva Conventions as a whole (and even clearer when one looks at them in the context of the entire system of CIL).

The difference, I think, is that I believe that any good theory of treaty construction should include a canon rejecting such counter-structural interpretations; one should instead fill in the ambiguity in the way needed to keep the treaty's overall principles from being frustrated. I assume that you would disagree.

I can see that many people would dislike this canon, just as many people dislike structuralist/holistic readings of the Constitution and some of the normative canons that can result therefrom; but it is at least a plausible option, with a coherent theory behind it -- and one which, in the context of treaty interpretation, has a long heritage.

And, for what it's worth, the most recent Guantanamo detainee case ruling deals directly with this question of interpretation and comes down against the administration (see my comment to a post on Michael Froomkin's weblog):